CCJE-BU(2019)1
Strasbourg, 7 January 2019
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
Questionnaire for the preparation of the CCJE Opinion No. 22 (2019):
“The role of court clerks and legal assistants within the courts
and their relationships with judges”
Please in your answers do not send extracts of your legislation (except just in one case mentioned below under question 26 where a separate attachment is possibly requested) but describe the situation in brief and concise manner.
Comments on what is also happening in practice, and not only on point of law, will be much appreciated.
Introduction
This questionnaire aims at gaining information about the role and duties of assistants who support judges in their work. However, members of the security and IT staff are not covered. While there are different models in member States, this questionnaire distinguishes between administrative assistants and judicial assistants. The CCJE realises, however, that the line between the two groups is not always clear-cut.
For the purpose of this questionnaire, administrative assistants are assistants who help fulfilling the administrative duties of the court. They work, for example, on the organisation of files, correspondence, preparation of official versions of decisions, collecting documents and statistical data.
Judicial assistants usually have a legal education and support judges or panels of judges in their adjudicative work. Judicial assistants undertake a wide range of tasks such as research, acting as a sounding board in discussions with a judge, preparing memos on whether to grant permission to appeal or drafting judgments. Such persons might be called judicial assistants, law clerks, legal officers, secretaries, Wissenschaftliche Mitarbeiter, Gerichtsschreiber, référendaires or greffiers.
It should be emphasised that the court employees who are assigned their own tasks (i.e. Rechtspfleger) are not within the scope of this questionnaire. However, the questionnaire does touch upon the situation in some countries where judicial assistants, in addition to supporting judges, have their own tasks.
Part I contains questions about both administrative and judicial assistants and then focuses on the duties of judicial assistants. Parts II-IV contain questions exclusively about judicial assistants. Part II concerns the organisation of judicial assistants, Part III concerns the education and selection of judicial assistants, and Part IV concerns their regulation and status. Part V has two general questions about the optimal support for judges and the challenges your member State faces.
I. How are judges supported?
1. Are judges supported in their work by assistants who are not judges at that court (and also not members of the security or IT staff)?
a) by administrative assistants
b) by judicial assistants
Judges are assisted by both assistants. For more details see answers to questions 2 and 3 below.
2. What is the rationale for employing assistants in your system? If there are different rationales for employing administrative assistants and judicial assistants, please describe those rationales separately.
Administrative assistants are employed to help fulfilling the administrative duties of the court. They perform tasks that are related to the technical preparation of the cases for court hearings: they organize files, court correspondence, communicate with parties - send them court notices or inform then via phone communication, parties may call them to get information on various procedural issues in regard to the pending case, they check written communication sent by parties to the court, collect documents, prepare official copies of decisions.
Judicial assistants have tasks requiring more intellectual work – they do research, prepare various memos and draft decisions of the court.
3. What kind of duties judicial assistants have at the courts in your member State? If they perform different duties in different courts, please explain these duties separately. Such duties may include:
· Research, maybe summarised in a memo
· Discussion with the judge(s)
· Memos with a summary of the facts of a case and the relevant law
· Memos with a summary of the facts of a case and the relevant law and a suggestion of the judicial assistant how the case should be decided
· Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review
· Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?
· Drafting complete judgments
· Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.
· Reading draft judgments of other judges and discussing them with the judge
· Crosschecking references
· Drafting press releases
· Drafting procedural decisions
· Deciding procedural issues such as appointing an expert or deciding on costs of proceedings
· Conducting hearings and deciding simple cases autonomously, for example concerning enforcement, or simple criminal cases. If so, please specify if a judge has to approve the decision or if the decision is taken by the judicial assistant alone.
· In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:
- Writing protocols in hearings
- Organisation of files
- Correspondence with parties
- Preparing the official copies of decisions, preparing decisions for publication
- Collecting statistical data
At the first instance courts judicial assistants perform all judicial and administrative tasks listed above in this question, except tasks specified in the Note #1 below.
At the courts of Appeal each judge has a judicial assistance that performs all judicial and administrative tasks listed above in this question, except tasks specified in the Note #1 below. In addition there is one more judicial assistant for each panel of three judges, who prepares draft judgments for the panel.
At the Supreme Court each judge has 2 assistants: one is judicial and another - administrative, They perform all judicial or administrative tasks listed above in this question respectively, except tasks specified in the Note #1 below. Both assistants must have a law degree and comply with the requirements described in Question 19 below.
Note #1 – judicial assistants in Georgia do not conduct hearings and decide any case autonomously.
4. If judicial assistants help in the drafting process, how do they do it?
Judicial assistants do research, summarised in a memo; draft memos with a summary of the facts of a case and the relevant law; draft procedural decisions and at the Supreme Court decisions on non-admissibility of a case; draft complete judgments (not every judgements but only in relation to those cases regarding which the court case law is well established).
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Judicial assistants are not present during deliberations.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Judicial assistants are present in hearings on a voluntary basis. They do not have any duties and are not allowed to ask questions during hearings.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
There are formal internal rules what kind of duties judicial assistants should undertake, adopted by first, second and third instance courts (these rules are called “Job Description”). Judicial assistants are not expected to undertake any duty that is not prescribed in these rules (see Question 26 below).
8. Which duties belong exclusively to the judge?
Judges’ exclusive duties are: to conduct a court hearing and make decision on the case;
to participate in deliberations.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
Work of the judicial assistants plays an important role to inform a judge about the relevant case law, research and academic materials. However, since judges conduct hearings themselves and deliberate with other judges when the case is decided by a panel, they are always decision makers. Judicial assistants cannot affect judicial decision-making in any decisive way.
10. Is there any official data or - if not - do you have a view how useful judicial assistants actually are e.g. in saving judges’ time?
There is no official data.
Based on my personal experience and experience of my colleagues, judicial assistants are very important to make judges’ work more productive and facilitate efficient and timely resolution of disputes.
II. Organisation of judicial assistants
11. At which courts in your member State are judges supported by judicial assistants? First instance/second instance/third instance/constitutional court?
At all instance courts, including constitutional court.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
There are no lay judges in Georgia.
13. How are judicial assistants organised? If there are different forms of organisation at different courts, please explain the different models. For example:
· Are assistants assigned to one judge individually? If so, how many assistants work for each judge?
· Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel?
· Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
Assistants are assigned to each judge individually. At first and second instance courts each judge has one assistant. At the Supreme Court and Constitutional Court each judge has two assistants.
In addition to one assistant per judge, at the second instance court there is one more assistant assigned to a panel of three judges. Thus every three judge has one more assistant at the second instance court.
14. Who pays them?
Assistants are paid by the respective court.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
Assistants are considered civil servants.
16. How much do they earn compared to the judges for whom they work? You do not need to indicate exact amounts, but mentioning the proportion between the salaries of judges and assistants would be helpful. For example, how does the salary of a judicial assistant working at a first instance court compare to that of a judge at that court?
Salary of the judicial assistant amounts to approximately 50% of the salary of a judge.
III. Background and selection of Judicial Assistants
17. Is serving as a judicial assistant a necessary part of the legal education in your member State / a prerequisite for becoming a judge?
No.
18. What kind of education do judicial assistants have? For example, studies of law, politics, service in the police or military etc., a special education?
They shall have a law degree.
19. What kind of work experience do judicial assistants have? If they have a legal education, have they qualified for practice? Are they seconded judges? Have they gained practical experience, if so, in what areas?
They are required to have:
(a) at least 1 year practical experience as a lawyer (advocate), an investigator, a prosecutor or a judge, or
(b) at least 2 year practical experience as a legal advisor, or
(c) pass judge qualification exams, or
(d) undergo special course for judicial assistants at the High School of Justice.
20. How are they selected?
They are selected on a competition basis, like other civil servants.
21. How long do judicial assistants usually work in that capacity? Just for one or a few months, or years? Or is it a long-term/permanent career?
They have contracts with unlimited terms. However in practice they usually remain at work approximately 5-10 years.
22. If it is a short-term position, what do they do afterwards?
This is not a short-term position. They can work for an unlimited term. If they choose to leave they become lawyers, prosecutors or judges.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
If person wishes to pursue a carrier of a judge, a prosecutor or a lawyer, it is considered an advantage to have working experience as a judicial assistant. However, it is not formally required.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
Yes. Administrative assistants can become judicial assistants. Judicial assistants at the first instance courts can move to second and third instance courts. Finally, judicial assistants usually become judges after they pass judge qualification exams and complete studies at the High School of Justice.
IV. Status and regulation of judicial assistants
25. Do judicial assistants swear an oath? Do they wear some form of official dress at certain occasions? E.g. gowns when in court?
No. Judicial assistants do not swear an oath. They do not wear any official dress or gown.
26. Are there formal regulations concerning the status and duties of judicial assistants? if so, is it a statute or internal regulation? If yes, what is regulated by them? Could you provide, as a separate attachment to your answers, the text of the regulation please?
There are formal internal rules concerning the status and duties of judicial assistants adopted by first, second and third instance courts (these rules are called “Job Description”). They are internal regulations. Rules contain qualification and work experience requirements for the position of a judicial assistant and a detailed list of their duties.
In addition, judicial assistants as public servants are subject to regulations by the Law on Public Service. Judicial assistants are considered public servants of the “2nd rank” in accordance to the Law on Pubic Service.
(see attached file “Job Description” for judicial assistants adopted by the Supreme Court of Georgia. Text is in Georgian. There is no English translation).
27. Are there informal rules governing the relationship between judge and judicial assistants?
No.
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
No.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
They cannot become members of association of judges. There is no special association of judicial assistants.
V. General considerations about the support of judges
30. Do you believe that judges in your system would need more or different support by personnel to work effectively? If yes, what kind of support?
In addition to support received from judicial and administrative assistants, judges need support from special departments in the court, that have a task to study and analyse the court practice in order to produce materials for judges what are the general tendencies regarding certain legal problems and what are issues on which the courts have different approach. Judges also need support from analytical department and the department of international law to get information about recent practice of the ECtHR and other international human rights bodies.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
The most severe problem that judges face today in Georgia is a very big number of cases to be decided by each judge. Judges permanently have 100-200 pending cases in their disposal and are in constant violation of time limits prescribed by law. Number of judges is very low (approx. 300 judges in total) compared to the workload of courts and the increased number of disputes. Most significant support will be increase in the number of judges.
In some courts there are problems related to technical support. There is a lack of courtrooms to conduct hearings. However, in general court facilities are adequate and in good condition. IT support is also adequate. However constant advancement is required.
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